USA v. Yazzie, et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Plaintiff,
vs. 	No. CR 22-0298 JB
GREGORY YAZZIE,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on: (i) the Defendant Gregory Yazzie’s
Objections to the Presentence Investigative Report, filed July 29, 2025 (Doc. 264)(“Objections”);
and (ii) the United States of America’s Motion for Enhancement for Reckless Endangerment
During Flight, filed August 6, 2025 (Doc. 267)(“Motion”). 	The sentencing is scheduled for
February 23, 2026. The primary issues are: (i) whether the Court should overrule Defendant G.
Yazzie’s Objections regarding the United States Probation Office’s Presentence Investigation
Report ¶ 26, at 10, filed January 28, 2025 (Doc. 234)(“PSR”), because the PSR states that G.
Yazzie points a gun at the victims during the commission of the crime; (ii) whether the PSR
correctly applies a 2-level enhancement under § 2B3.1(b)(4)(B), because G. Yazzie physically
restrains the victims to facilitate the commission of the offense of robbery; (iii) whether the Court
should overrule G. Yazzie’s Objections regarding the PSR ¶¶ 16-17, at 7, because of G. Yazzie’s
contention that he was not involved in a high-speed chase with co-Defendant Amber Yazzie; (iv)
whether the Court should grant the United States’ Motion for a 2-level enhancement under § 3C1.2,
because G. Yazzie shot at officers while fleeing on December 6, 2021; and (v) whether the Court
will accept the United States’ withdrawal of its recommendation for reduction for acceptance of
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responsibility, because G. Yazzie’s commission of new crimes post-Plea Agreement. The Court:
(i) sustains Yazzie’s Objection to PSR ¶ 26, at 10, because G. Yazzie does not point a gun at the
victim during the commission of the crime; (ii) concludes that the PSR correctly applies a 2-level
enhancement under § 2B3.1(b)(4)(B), because G. Yazzie and A. Yazzie use the threat of force to
restrain the victims; (iii) overrules G. Yazzie’s Objection to PSR ¶¶ 16-17, at 7, because the United
States has shown -- by a preponderance of the evidence -- that G. Yazzie is involved in a high
speed chase with A. Yazzie; (iv) grants the United States’ Motion for a 2-level enhancement under
§ 3C1.2, because the United States has shown -- by a preponderance of the evidence -- that G.
Yazzie shot at police officers while fleeing their pursuit; and (v) the Court will accept the United
States’ withdrawal of its recommendation for reduction for acceptance of responsibility, because
G. Yazzie does not fulfill his promises under the plea agreement by committing new crimes post-
Plea Agreement. The applicable offense level is 24, the applicable criminal history category is I,
and the United States Sentencing Guidelines establish an imprisonment range of 51-63 months
before the term of imprisonment on Count 3 is imposed. 	After imposing the Count 3 term of
imprisonment, the guideline range is 111-123 months.
FACTUAL BACKGROUND
G. Yazzie does not object to the PSR facts except those in ¶¶ 16, 17, 26, at 7, 10. 	See
Objections at 1-3. Those undisputed facts are the Court’s findings of fact. See Fed. R. Crim. P.
32(i)(3)(A) (“[The court] may accept any undisputed portion of the presentence report as a finding
of fact.”). Regarding PSR ¶ 26, at 10, the Court sustains Yazzie’s objection and incorporates his
finding of fact. 	Regarding PSR ¶¶ 16, 17, at 7, the Court concludes that the United States has
shown -- by a preponderance of the evidence -- that the allegations in those paragraphs are true.
The Court therefore includes the allegations in PSR ¶¶ 16, 17, at 7, in the Court’s findings of fact.
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When resolving factual objections, the Court must determine whether the United States has
met its burden of proving disputed facts by a preponderance of the evidence. See United States v.
Olsen, 519 F.3d 1096, 1105 (10th Cir. 2008). In evaluating whether the United States has met its
burden, “sentencing courts may consider hearsay evidence provided that the evidence has
sufficient indicia of reliability.” United States v. Dazey, 403 F.3d 1147, 1177 n.7 (10th Cir. 2005).
See U.S.S.G. § 6A1.3.1 	“This is not a high standard, for it requires only ‘minimal indicia of
1 Although a district court “resolving any dispute concerning a factor important to the
sentencing determination . . . may consider relevant information without regard to its admissibility
under the rules of evidence applicable at trial, provided that the information has sufficient indicia
of reliability to support its probable accuracy,” U.S.S.G. § 6A1.3, the federal rules of evidence can
be relevant to fact-finding at sentencing. In United States v. Calvert-Cata, No. CR 16-4566 JB,
2022 WL 14813473, at *12 (D.N.M. October 26, 2022)(Browning, J.), aff’d, No. 23-2000, 2024
WL 33901 (10th Cir. January 3, 2024), the Court holds, in a revocation context, that it may consider
and rely upon out-of-court statements if those statements are admissible under the Federal Rules
of Evidence and under Crawford v. Washington, 541 U.S. 36 (2004)(“Crawford”), without
evaluating separately those statements’ reliability. 	See United States v. Calvert-Cata, 2022 WL
14813473, at *12. The Court reasons that, “because evidentiary standards for revocation hearings
are supposed to be more inclusive and flexible than trials,” it “makes no sense to require the United
States to” clear hurdles that are not there at trial. Calvert-Cata, 2022 WL 14813473, at *12.
Here, the Court concludes that the same principles apply and that, in a sentencing context,
it may consider and rely upon out-of-court statements that are admissible under the Federal Rules
of Evidence without evaluating separately those statements’ reliability. Like revocation hearings,
sentencing hearings are supposed to have more inclusive and flexible evidentiary standards than
trials. For example, at sentencing, district courts use a preponderance of the evidence standard to
resolve factual disputes and apply sentencing enhancements. See United States v. Olsen, 519 F.3d
1096, 1105 (10th Cir. 2008); United States v. Magallanez, 408 F.3d 672, 685 (10th Cir. 2005).
Similarly, a district court may “revoke supervised release after concluding that the defendant
violated a condition of probation by a preponderance of the evidence.” United States v. Hykes,
653 F. Supp. 3d 913, 926 (D.N.M. 2022)(Browning, J.)(citing 18 U.S.C. § 3583(e)). 	Also, a
district court may consider, for both sentencing and revocation, out-of-court statements that are
not admissible at trial. 	See U.S.S.G. § 6A1.3; Fed. R. Crim. P. 32.1(b)(2)(C). 	Moreover, the
standard for considering an out-of-court statement at sentencing is higher than the standard for
considering an out-of-court statement at revocation. 	At sentencing, a district court need only
determine that the statement has “sufficient indicia of reliability to support its probable accuracy.”
U.S.S.G. § 6A1.3. 	See United States v. Dazey, 403 F.3d 1147, 1177 n.7 (10th Cir. 2005). 	At
revocation, a district court must weigh the statement’s reliability and the defendant’s interest in
cross-examination against the United States’ explanation for not presenting a witness. See United
States v. Jones, 818 F.3d 1091, 1099-1100 (10th Cir. 2016); United States v. Murphy, 769 F. App’x
631, 633-34 (10th Cir. 2019). 	Given that it is easier to consider an inadmissible out-of-court
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reliability.’” United States v. Ayon, 226 F. App’x 834, 840 (10th Cir. 2007)(unpublished)(quoting
United States v. Fennell, 65 F.3d 812, 813 (10th Cir. 1995)).
On December 4, 2021, G. Yazzie walked into C&R Insurance with Defendant Chadyne
Tohe and his sister Amber Yazzie. See 2nd Presentence Investigation Report at 6, filed August 28,
2025 (Doc. 271)(“2nd PSR”). 	The trio each assumed defined roles. 	A. Yazzie’s role is
intimidation: she demands everyone show his or her hands and get on the ground before firing a
shot into the ceiling while yelling, “hands up, put your fucking hands up, give your fucking money,
give me your money.” 2nd PSR at 6. Tohe’s role is straightforward; he collects the money from
the register while A. Yazzie scares the staff. 	See 2nd PSR at 6. 	G. Yazzie, meanwhile, is the
lookout, positioning himself at the front door with a firearm, ensuring that no one flees while his
accomplices perform their tasks. See 2nd PSR at 7. This ultimately led to a loss of $4,044.00 for
C&R. See 2nd PSR at 6.
statement at sentencing, it makes sense to apply the Court’s reasoning in United States v. Calvert-
Cata to sentencing; if the Court can consider admissible out-of-court statements at revocation
without evaluating separately whether those statements are reliable, then the Court can do the same
at sentencing, where the evidentiary hurdle is lower.
United States v. Murphy is an unpublished opinion, but the Court can rely on an
unpublished United States Court of Appeals for the Tenth Circuit opinion to the extent its reasoned
analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A) (“Unpublished decisions are
not precedential, but may be cited for their persuasive value.”). The Tenth Circuit states:
In this circuit, unpublished orders are not binding precedent, . . . and we
have generally determined that citation to unpublished opinions is not favored.
However, if an unpublished opinion or order and judgment has persuasive value
with respect to a material issue in a case and would assist the court in its disposition,
we allow a citation to that decision.
United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). The Court concludes that United
States v. Murphy, and United States v. Ayon, 226 F. App’x 834 (10th Cir. 2007), have persuasive
value with respect to a material issue, and will assist the Court in its disposition of this
Memorandum Opinion and Order.
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On December 6, 2021, police receive a call from an unknown female reporting that A.
Yazzie -- wanted for robbery and murder -- is leaving her residence in a black four-door vehicle.
See 2nd PSR ¶ 16, at 7. Minutes later, officers locate the vehicle and attempt a traffic stop, but the
vehicle does not yield. See 2nd PSR ¶ 17, at 7. The vehicle runs a traffic light and speeds away
at roughly eighty miles per hour, without headlights. See 2nd PSR ¶ 17, at 7. When the headlights
are eventually turned on, the vehicle begins traveling the wrong way at speeds exceeding 100 miles
per hour. See 2nd PSR ¶ 17, at 7. During the chase, officers observe passengers throwing objects
from the vehicle and hear gunshots fired from the passenger side. See 2nd PSR ¶ 17, at 7. The
pursuit leads to a nearby residence, but officers are unable to locate the occupants or to detect
movement inside. See 2nd PSR ¶ 17, at 7. They confirm, however, that shots had been fired, as
the vehicle recovered at the scene has bullet holes on the passenger side. See 2nd PSR ¶ 17, at 7.
Later interviews confirm that G. Yazzie is one of the passengers during the high-speed chase and
actively fires at pursuing officers. See 2nd PSR ¶ 27, at 10.
G. Yazzie was not apprehended until December 10, 2021. See 2nd PSR ¶ 18, at 8. That
day, officers spot a brown van and attempt to initiate a traffic stop, but the vehicle immediately
fled. 	See 2nd PSR ¶ 18, at 8. 	The van speeds recklessly, weaving across lanes and blatantly
disregarding traffic laws. See 2nd PSR ¶ 18, at 8. Officers deploy stop sticks, which deflates the
right front and rear tires, slowing the vehicle. See 2nd PSR ¶ 18, at 8. The van eventually loses
control on a dirt road, crashing into a fence near a residence. 	See 2nd PSR ¶ 18, at 8. 	Upon
stopping, the driver and a passenger flee on foot. See 2nd PSR ¶ 18, at 8. The passenger -- later
identified as G. Yazzie -- is quickly apprehended after attempting to escape through a nearby
property’s back door. See 2nd PSR ¶19, at 8.
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Appearing to have learned little from his prior encounters with law enforcement, G. Yazzie
continues to engage in criminal conduct while in confinement for the underlying offenses. 	On
February 5, 2024, during a strip search in the shower area, officers recover a sharpened instrument
in G. Yazzie’s possession. See Second Addendum at 1, filed March 3, 2025 (Doc. 248). Less than
a month later, on March 4, 2024, G. Yazzie assaults an inmate, who is transported to Cibola General
Hospital for stitches to his lip. 	See Second Addendum at 1. 	On November 8, 2024, G. Yazzie
refuses to return to his cell, citing concerns for his personal safety. See Second Addendum at 1.
Investigation reveals that G. Yazzie, together with three other inmates, has been assigned to act as
“protectors” for another inmate and has coordinated a plan to prevent security officers from
removing him. Second Addendum at 1. The pattern continues on December 31, 2024, when a cell
search uncovers a homemade puncture weapon; both G. Yazzie and his cellmate are disciplined.
See Motion at Ex. 1. On April 2, 2025, another search reveals a sharpened piece of metal in his
waistband, resulting in his placement in restrictive housing. See Motion at Ex. 2. Taken together,
these repeated actions paint a clear portrait of a person unwilling to abide by rules, indifferent to
authority, and unconcerned with the safety of those around him.
PROCEDURAL BACKGROUND
On June 28, 2022, a Superseding Indictment was filed in the United States District Court
for the District of New Mexico, charging the defendants as follows:
Count 1: Amber Yazzie, Gregory Yazzie, Randy Joe, and Chadyne Tohe,
with Interference with Interstate Commerce by Robbery and Violence; Aiding and
Abetting. The offense occurred on or about December 4, 2021, in McKinley
County.
Count 2: Amber Yazzie with Using and Carrying a Firearm During and in
Relation to a Crime of Violence, and Possessing a Firearm in Furtherance of Such
Crime; Discharging Said Firearm. The offense occurred on or about December 4,
2021, in McKinley County.
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Count 3: Gregory Yazzie with Using and Carrying a Firearm During and in
Relation to a Crime of Violence, and Possessing a Firearm in Furtherance of Such
Crime. The offense occurred on or about December 4, 2021, in McKinley County.
Count 4: Amber Yazzie with Assault with a Dangerous Weapon. The offense
occurred on or about December 6, 2021, in Indian Country, in McKinley County.
Count 5: Amber Yazzie with Using and Carrying a Firearm During and in
Relation to a Crime of Violence, and Possessing a Firearm in Furtherance of Such
Crime; Discharging Said Firearm. The offense occurred on or about December 6,
2021, in McKinley County.
See 2nd PSR ¶ 1, at 4 (bold in 2nd PSR). On December 4, 2024, G. Yazzie pleads guilty to Counts
1 and 3 of the five-count Superseding Indictment. See 2nd PSR ¶ 2, at 4.
Count 1 charged Interference with Interstate Commerce by Robbery; Aiding and
Abetting, in violation of 18 U.S.C. § 1951(a) and 18 U.S.C. § 2; Count 3 charged
Using and Carrying a Firearm During and in Relation to a Crime of Violence, and
Possessing a Firearm in Furtherance of Such Crime, in violation of 18 U.S.C. §
924(c)(1)(A)(i).
See 2nd PSR ¶ 2, at 4.
On January 28, 2025, the United States Parole Office (“USPO”) files the PSR, which
applies a total offense level of 19. See PSR at 14. On July 29, 2025, G. Yazzie files the Objections,
which raises three objections to the PSR. See Objections at 1-4. G. Yazzie’s first Objection is that
PSR ¶ 26, at 10, incorrectly states that G. Yazzie points a gun at the victims. See Objections at 1.
He states that he never points a gun at anyone and that the statement in the PSR is contrary to the
surveillance video. See Objections at 1. G. Yazzie’s second Objection is that the USPO improperly
applies a 2-level physical restraint enhancement under § 2B3.1(b)(4)(B). See Objections at 2. He
argues that § 2B3.1(b)(4)(B) is inapplicable because it does not apply when threats rather than
physical force hinder freedom of movement. See Objections at 2. G. Yazzie’s third Objection is
that PSR ¶¶ 16, 17, at 7, improperly includes information about a high-speed chase, because he
denies any involvement in the chase. See Objections at 3.
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On August 6, 2025, the United States files its Sealed United States’ Sentencing
Memorandum, Notice of Withdrawal of Acceptance of Responsibility, Response to Defendant’s
Objections to the PSR and Motion for Enhancement for Reckless Endangerment During Flight.
See Motion at 1. The United States first provides a notice of withdrawal of recommendation for
reduction for acceptance of responsibility, because G. Yazzie’s commission of new crimes while
in Cibola County Correctional. See Motion at 7. The United States then argues that the § 3C1.2
reckless-endangerment-during-flight enhancement should apply, because Yazzie shot at officers
during a high-speed chase on December 6, 2021. See Motion at 10. Regarding G. Yazzie’s first
objection, the United States does not oppose the objection, because it agrees that it is not clear that
G. Yazzie points a gun at any of the victims. See Motion at 15. Regarding G. Yazzie’s second
Objection, the United States argues that the USPO properly applies a 2-level § 2B3.1(b)(4)(B)
enhancement, because the physical restraint enhancement does not require touching the victim.
See Motion at 15. 	Regarding G. Yazzie’s third Objection, the United States argues that the
information regarding the high-speed chase is relevant conduct, because G. Yazzie participated in
the chase. See Motion at 16.
On August 11, 2025, the USPO responds to the Objections. See Third Addendum to the
Presentence Report at 1, filed August 11, 2025 (Doc. 268)(“Third Addendum”). 	Regarding G.
Yazzie’s first Objection, the USPO does not oppose the Objection, because it is not clear that G.
Yazzie points a gun at any of the victims. See Third Addendum at 1. Regarding G. Yazzie’s second
Objection, the USPO maintains that the § 2B3.1(b)(4)(B) enhancement applies, because G. Yazzie
used the threat of force to restrain the victims. See Third Addendum at 3. Regarding G. Yazzie’s
third Objection, the USPO maintains that the information regarding the high-speed chase in PSR
¶¶ 16, 17, at 10, is relevant conduct, because evidence shows G. Yazzie participates in the chase.
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See Motion at 16. Regarding the United States’ request for a § 3C1.2 reckless-endangerment
enhancement, the USPO contends that there is a preponderance of evidence to support the assertion
that G. Yazzie participates in the high-speed chase.
ANALYSIS
The Court sustains in part and overrules in part the Objections, and grants the United States’
Motion. 	First, the Court sustains G. Yazzie’s first Objection to PSR ¶ 26, at 10, because the
evidence does not show that he points a gun at any of the victims. Second, the Court overrules G.
Yazzie’s second Objection to the § 2B3.1(b)(4)(B) enhancement, because G. Yazzie uses the threat
of force to restrain the victims. Third, the Court overrules G. Yazzie’s third Objection to PSR ¶¶
16, 17, at 7, because the United States has shown -- by a preponderance of the evidence -- that G.
Yazzie participates in the high-speed chase. Fourth, the Court grants the United States’ Motion for
a § 3C1.2 reckless-endangerment enhancement, because, again, the United States shows -- by a
preponderance of the evidence -- that G. Yazzie participates in the high-speed chase. 	Fifth, the
Court will not give G. Yazzie a reduction for acceptance of responsibility, because he has
committed several new crimes while at Cibola County Correctional.
I. 	THE COURT SUSTAINS G. YAZZIE’S OBJECTION TO PSR ¶¶ 16, 17, AT 7.
The Court concludes that PSR ¶ 26, at 10, does not describe accurately G. Yazzie’s actions
in the underlying offense. The pertinent language states: “The participants restrained the victims’
freedom of movement with the threat of injury by Amber Yazzie and Gregory Yazzie pointing guns
at them.” 	PSR ¶ 26, at 10. 	G. Yazzie argues that this language is incorrect, because he “never
pointed a gun at anyone, and the statement is contrary to the surveillance video and is also
inconsistent with Jane Doe’s statement . . . .” 	Objections at 1. 	Both the United States and the
USPO agree that G. Yazzie does not point a gun at any victim. The Court therefore sustains G.
Yazzie’s Objection. This ruling has no bearing on G. Yazzie’s offense level.
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II. 	G. 	YAZZIE’S 	BASE 	LEVEL 	OFFENSE 	IS 	SUBJECT 	TO 	A 	2-LEVEL
PHYSICAL 	RESTRAINT 	ENHANCEMENT 	INCREASE 	PURSUANT 	TO
U.S.S.G. § 2B3.1(B)(4)(B).
The Court concludes that the Physical Restraint Enhancement applies, because G. Yazzie
and his co-conspirators use the threat of force to restrain their victims. G. Yazzie contends that the
enhancement is not appropriate, because § 2B3.1(b)(4)(B)’s commentary defines “physically
restrained” as “the forcible restraint of the victim such as being tied, bound, or locked up.” See
Objections at 2. 	This argument fails, because § 2B3.1(b)(4)(B) also applies when the restraint
results from the threat of force.2 	For purposes of this enhancement, “physical restraint is not
limited to physical touching of the victim. Rather, physical restraint occurs whenever a victim is
specifically prevented at gunpoint from moving, thereby facilitating the crime. Keeping someone
from doing something is inherent within the concept of restraint . . . .” United States v. Miera, 539
F.3d 1232, 1234 (10th Cir. 2008)(emphasis in original)(“Miera”).
Something more is required, however, than merely possessing or brandishing a firearm.
Miera, 539 F.3d at 1234. For example, in Miera, robbers yelled at bank patrons not to move while
waving guns -- conduct that “kept the bank occupants from even considering escape.” 539 F.3d at
1234. 	The Tenth Circuit holds the enhancement proper, because the robbers’ commands and
display of weapons effectively restrain everyone present. See Miera, 539 F.3d at 1235.
Likewise, G. Yazzie stands at C&R’s exit with a gun while A. Yazzie orders employees and
patrons to raise their hands at gunpoint. 	See PSR ¶ 14, at 6; See id. ¶ 12, at 6. Taken together,
2 The newest amendment -- effective November 1, 2025 -- to § 2B3.1(b)(4)(B) clarifies
that the enhancement applies when a robbery victim’s movement is restricted at gunpoint, even if
the victim is not immobilized in the manner described in the definition of “physically restrained”
in Application Note 1 to § 1B1.1. Amendment 832 to U.S.S.G. § 2B3.1(b)(4)(B)(“Amendment
832”). The Sentencing Commission accomplished this by revising the text from “if any person
was physically restrained” to “if any person’s freedom of movement was restricted through
physical contact or confinement, such as by being tied, bound, or locked up.” Amendment 832.
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these actions physically restrain everyone inside the store. The Court therefore concludes that the
2-level Physical Restraint Enhancement applies.
III. 	THE 	UNITED 	STATES 	SHOWS 	-- 	BY A PREPONDERANCE 	OF THE
EVIDENCE -- THAT G. YAZZIE PARTICIPATES IN THE HIGH-SPEED
CHASE.
The Court concludes that the United States proves, by a preponderance of the evidence,
that G. Yazzie participates in the high-speed chase on December 6, 2021. G. Yazzie argues that
the Court should strike PSR ¶¶ 16, 17, at 10, because he is not involved in the incident the PSR
describes. Those paragraphs state:
On December 6, 2021, MCSO deputies were dispatched to a call from an
unknown female stating Amber Yazzie, who was wanted for robbery and murder,
was outside her residence. The unknown female reported Amber Yazzie was
leaving the area in a black four door vehicle but was not able to provide additional
information on the vehicle. Minutes later, GPD officers located a black four door
vehicle travelling west on New Mexico State Highway 602, mile marker 26, in
Gallup, New Mexico. The vehicle was bearing New Mexico license plate APDM38.
The vehicle was registered to Randy Joe who was a known family member of
Amber Yazzie with an address in Vanderwagen, New Mexico.
The vehicle failed to stop at a traffic light, and officers followed the vehicle
which began travelling 80 miles per hour (mph) with no headlamps. The vehicle
eventually turned on its headlamps and began travelling the wrong way at over 100
mph. The vehicle turned off its headlamps and continued to turn its headlights on
and off, traveling the wrong way, and traveling at high rates of speed. Officers
observed the passengers of the vehicle throwing items out of the window. Officers
reported they heard three gunshots and later heard additional shots being fired and
orange flashes from the passenger side of the vehicle while following the vehicle.
Officers 	slowed 	down 	but 	followed 	the 	vehicle 	tracks 	to 	a 	residence 	in
Vanderwagen, New Mexico. The vehicle, a gray Chevrolet Malibu, was located
behind the residence. Officers were not able to locate the passengers of the vehicle,
and they did not observe movement inside the residence. NPD officers arrived on
scene and advised that no crime had been committed in their jurisdiction, and they
were departing from the scene. GPD and MCSO were instructed by their command
to leave the scene.
PSR ¶¶ 16, 17, at 10. Several facts support the conclusion that G. Yazzie participates in the chase.
First, pursuing officers hear gunshots and see muzzle flashes from the fleeing vehicle’s passenger
side. See Motion at 11. Second, co-Defendant Joe -- who admits driving the vehicle -- tells officers
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that G. Yazzie is in the passenger seat. See Motion at 11. Third, Joe states that G. Yazzie fires at
law enforcement during the pursuit. See Motion at 11. Fourth, co-Defendant Tohe also confirms
that G. Yazzie is in the vehicle and shooting at officers. See Motion at 11. Taken together, this
evidence establishes, by a preponderance of the evidence, that G. Yazzie participates in the
December 6, 2021, high-speed chase. The Court therefore overrules G. Yazzie’s Objection to ¶¶
16, 17, at 10.
IV. 	G. YAZZIE’S BASE LEVEL ENHANCEMENT IS SUBJECT TO A 2-LEVEL
RECKLESS-ENDANGERMENT-DURING-FLIGHT 	ENHANCEMENT
PURSUANT TO U.S.S.G. § 3C1.2.
The Court concludes that G. Yazzie’s base offense level is subject to a 2-level increase
under § 3C1.2, because G. Yazzie shoots at law enforcement while fleeing on December 6, 2021.
A 2-level enhancement applies under § 3C1.2 “if the defendant recklessly created a substantial risk
of death or serious bodily injury to another person in the course of fleeing from a law enforcement
officer.” 	U.S.S.G. § 3C1.2. 	“Not every flight from a crime scene, of course, will constitute
reckless endangerment under § 3C1.2. There are situations in which a defendant might flee from
law enforcement officers in a manner that does not recklessly endanger others.” United States v.
Conley, 131 F.3d 1387, 1390 (10th Cir. 1997). As the Court notes previously, “the ‘Tenth Circuit’s
precedent indicates that the most common cases where courts apply the guidelines involve high-
speed car chases.’” 	United States v. Fichera, No. CR 17-1369 JB, 2018 WL 5924391, at *3
(D.N.M. Nov. 14, 2018)(Browning, J.)(quoting United States v. Bush, 2012 WL 394572, at *8).
See United States v. Gray, 512 F. App’x 803, 807 (10th Cir. 2013)(collecting cases).
For example, in United States v. Porter, 643 F. App’x 758 (10th Cir. 2016), the Tenth Circuit
affirms the district court’s application of §3C1.2 where the defendant flees a traffic stop “and led
the officer on a short pursuit, committing several traffic violations and ultimately crashing into a
residential garage.” 	643 F. App’x at 760. 	As discussed above, the United States proves by a
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preponderance of the evidence that G. Yazzie is in the car during the high-speed chase on
December 6, 2021. 	The vehicle reaches speeds exceeding 100 miles per hour, often driving
without headlights and in the wrong lane. See Motion at 10-11; See PSR ¶ 17, at 7. In his attempt
to evade capture, G. Yazzie fires multiple rounds at pursuing officers from the passenger seat. See
Motion at 10; See PSR ¶ 17, at 7. 	This conduct is not merely reckless; it epitomizes the life-
endangering behavior that § 3C1.2 is designed to punish. The Court therefore grants the United
States’ Motion and applies a 2-level reckless endangerment enhancement under § 3C1.2.
V. 	G. YAZZIE’S BASE LEVEL ENHANCEMENT IS NOT SUBJECT TO A 3-
LEVEL ACCEPTANCE OF RESPONSIBILITY REDUCTION.
The Court concludes that G. Yazzie’s base offense level is not subject to a 3-level
acceptance of responsibility reduction, because he has committed new crimes following his Plea
Agreement. The Court must determine if G. Yazzie is entitled to a 2-level reduction pursuant to §
3E1.1(a); if he is not entitled to the 2-level reduction, the Court must deny the 1-level reduction
under § 3E1.1(b). This is because a defendant may receive the additional 1-level decrease only if
he first qualifies under § 3E1.1(a).
As a preliminary matter, the United States may withdraw its recommendation for a
reduction for acceptance of responsibility. 	General principles of contract law govern Plea
agreements. United States v. Guzman, 318 F.3d 1191, 1195 (10th Cir. 2003). If a defendant fails
to fulfill his promises under the plea agreement, the United States is released from its obligations
under the agreement. United States v. Ailsworth, 927 F. Supp. 1438, 1445 (D. Kan. 1996)(Crow,
J.). The Plea Agreement, filed December 2, 2024 (Doc. 222)(“Plea Agreement”), provides: “The
Defendant agrees not to engage in conduct that would constitute a new crime.” Plea Agreement ¶
17, at 9. It further states: “The Defendant agrees that if the Court finds by a preponderance of the
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evidence that the Defendant has violated any provision of this agreement, the United States will
be released from its obligations under the agreement.” Plea Agreement ¶ 32, at 12.
The United States shows, by a preponderance of the evidence, that G. Yazzie violates these
terms. On December 31, 2024 -- less than a month after entering into the Plea Agreement --
correctional officers find in G. Yazzie’s possession a puncture weapon made from a fence tie,
approximately 8 inches in length. See Motion at 7. On April 2, 2025, during a search preceding
his placement in Restrictive Housing, officers find in G. Yazzie’s waistband a sharpened piece of
metal, fashioned from a chain-link wire with a homemade cloth handle and measuring roughly six
and a half inches. See Motion at 8. The Court therefore allows the United States to withdraw its
recommendation for a reduction for acceptance of responsibility.
The question then becomes whether G. Yazzie remains entitled to the 2-level reduction
under § 3E1.1(a). “[W]hether a defendant has accepted responsibility is a factual question” for the
Court to decide. United States v. Lozano, 514 F.3d 1130, 1133 (10th Cir. 2008). In determining
whether a defendant qualifies under subsection (a), relevant factors include, but are not limited to:
(i) truthfully admitting the conduct comprising the offense of conviction; (ii) voluntary termination
or withdrawal from criminal conduct or associations; and (iii) post-offense rehabilitative efforts.
U.S.S.G. § 3E1.1 Application Note 1.
Although G. Yazzie enters into his Plea Agreement admitting his offense, the totality of his
conduct since then demonstrates no genuine acceptance of responsibility. He has not voluntarily
ceased criminal behavior, nor has he made any rehabilitative efforts. As the Court notes, officers
find two separate weapons in his possession -- one in December, 2024, and another in April, 2025
-- each fashioned for use as a stabbing instrument. See Motion at 7-8. His misconduct extends
even further back in time, occurring after the underlying offense but before he enters into the plea
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agreement. On February 5, 2024, officers recover a sharpened instrument from G. Yazzie during a
strip search in the shower area. See Second Addendum to the Presentence Report at 1, filed March
3, 2025 (Doc. 248). Less than a month later, on March 4, 2024, G. Yazzie assaults another inmate,
who requires stitches to his lip. 	See Second Addendum to the Presentence Report at 1. 	On
November 8, 2024, G. Yazzie refuses to return to his cell, citing safety concerns, but investigation
reveals that he and three other inmates are acting as “protectors” for another inmate, and
coordinated efforts to obstruct officers. Second Addendum to the Presentence Report at 1.
These are not the actions of a defendant who has renounced criminal conduct or accepted
moral or legal responsibility for it. G. Yazzie’s continued defiance -- marked by violence, weapon
possession, and manipulation of correctional staff -- shows that his plea is a tactical decision and
not a moral reckoning. 	The Court therefore concludes that a reduction for acceptance of
responsibility is not appropriate, and the Court declines to apply any decrease under § 3E1.1. G.
Yazzie’s conduct consistently undermines his words of contrition, and the Guidelines do not
reward remorse in name only.
IT IS ORDERED that: (i) the Defendant Gregory Yazzie’s Objections to the Presentence
Investigative Report, filed July 29, 2025 (Doc. 264)(“Objections”), are sustained in part and
overruled in part; (ii) the United States’ Motion for Enhancement for Reckless Endangerment
During Flight, filed August 6, 2025 (Doc. 267)(“Motion”), is granted; (iii) the 2-level U.S.S.G. §
2B3.1(B)(4)(B) enhancement applies; (iv) the 3-level § 3E1.1 reduction does not apply; (v) the
applicable offense level is 24; (vi) the applicable criminal history category is I; (vii) the United
States Sentencing Guidelines establish an imprisonment range of 51-63 months before the term of
imprisonment on Count 3 is imposed; and (viii) the imprisonment range is 111-123 months after
imposing the Count 3 term of imprisonment.
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________________________________
UNITED STATES DISTRICT JUDGE
Counsel:
Ryan Ellison
United States Attorney
Nicholas James Marshall
Jesse Pecoraro
Assistant United States Attorneys
United States Attorney’s Office
Albuquerque, New Mexico
Attorneys for the Plaintiff
Gregory M. Acton
Acton Law Office PC
Albuquerque, New Mexico
Attorney for the Defendant
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